ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (1986 and
Supp. 1997) and 25 S.C. Code Ann. Regs. 61-72.201 (Supp. 1997) upon Petitioner's request for a
contested case hearing after Respondent South Carolina Department of Health and Environmental
Control ("DHEC") denied Petitioner's request to continue placing municipal waste in its existing
solid waste facility until January 1, 2000.
A hearing before the Administrative Law Judge Division ("ALJD") was conducted on
October 9, 1998. Upon review of the relevant and probative evidence and the applicable law,
Petitioner's request to continue placing municipal waste in its existing solid waste facility until
January 1, 2000 is denied.
BACKGROUND
In 1991, the South Carolina General Assembly enacted the South Carolina Solid Waste
Policy and Management Act, S.C. Code Ann § 44-96-10 et. seq. (Supp. 1997). The purposes of the
Act include, inter alia, the protection of the public health and safety and the protection and
preservation of South Carolina's environment. S.C. Code Ann. § 44-96-20(B)(1) (Supp. 1997).
Additional purposes of the Act are to provide for the recycling of solid waste and to encourage local
governments to pursue a regional approach to solid waste management. S.C. Code Ann. § 44-96-20(B)(1), (12) and (14). To fulfill these purposes, the Act required DHEC to promulgate regulations
dealing with solid waste management. S.C. Code Ann. § 44-96-60(A) (Supp. 1997). In 1993,
DHEC promulgated S.C. Code Ann. Regs. 61-107.258, setting forth requirements for permitting
municipal solid waste facilities. The new regulations added new design and operating criteria as well
as location restrictions for municipal solid waste landfills ("MSWLF"). All municipal landfills
continuing to accept waste after the effective date of the regulations had to comply with the new
requirements or be subject to closure. Regulation 61-107.258.1(f) provides an exception to this
requirement:
The Department may allow vertical expansion of an existing MSWLF unit for a
period not to exceed two (2) years after the effective date of these regulations
(October 9, 1993), on a case by case basis. Vertical expansions allowing capacity
after October 9, 1993, shall be exempted from the requirements of Subpart B and
Subpart D. Any request for a temporary exemption from the requirements of Subparts
B and D shall be made to the Department in the form of an application for a vertical
expansion to the Department prior to the effective date of this regulation. Vertical
expansions shall apply only to those portions of the MSWLF unit that have
previously received waste prior to October 9, 1993, and have received waste
consistent with past operating practices.
This regulatory scheme was undertaken as a companion to Federal Regulations promulgated
under the Resource Conservation and Recovery Act ("RCRA") 42 U.S.C. §§ 6901 et. seq., which
prohibit the lateral expansion of existing unlined landfills. Taken together, the intent of the
regulations was to require all solid waste management facilities to come into compliance with the
requirements of S.C. Code Regs. 61-107.258.40 ("Subtitle D"), including the requirement that all
newly permitted facilities have impermeable membrane liners and leachate collection systems. New
vertical expansions for facilities not in compliance with Subtitle D would be allowed by DHEC after
1993 only until October of 1995, and only on a case by case basis.
As a practical matter, DHEC allowed municipal landfills with existing permitted capacity
as of October 9, 1993, to exhaust that permitted capacity without complying with the design
requirements of Subtitle D. (See Petitioner's Exhibit 8E). In 1995, however, DHEC promulgated
S.C. Code Ann. Regs. 61-107.258(k) which provides:
All MSWLF units permitted prior to, and after the effective date of this regulation,
which receive waste on or after October 9, 1998, must comply with all requirements
of this regulation. All MSWLF units which do not meet the criteria specified in
Subparts B, C, D, E, and F of this regulation must close prior to October 9, 1998.
These regulations were promulgated with the goal of having every municipal solid waste landfill in
South Carolina in compliance with Subtitle D by October 9, 1998.
In late 1992, Union County approached DHEC about the possibility of an intergovernmental
agreement with three other counties for a regional landfill that would comply with Subtitle D.
Additionally, Union County's existing permitted capacity as of October 9, 1993 was nearing
exhaustion by the Spring of 1995. Therefore, on April 25, 1995, Union County and DHEC entered
into a Consent Agreement which allowed Union County to vertically expand its landfill capacity
until October 9, 1998 and required Union County to develop a regional landfill with the cooperation
of Cherokee, Laurens and Newberry Counties. Union County's diligent efforts to obtain a
commitment from these other counties for the development of a regional landfill were ultimately
unsuccessful.
On July 2, 1998, Union County requested approval from DHEC to continue using its existing
landfill until January 1, 2000, as the vertical expansion capacity permitted by the Consent Agreement
was sufficient to handle solid waste until that date. After DHEC denied the request by letter dated
July 10, 1998, Union County requested a contested case hearing before the Administrative Law
Judge Division. On September 4, 1998, this tribunal issued a stay of the provisions of the Consent
Agreement requiring closure of the Union County landfill on October 9, 1998. The stay was ordered
to remain in effect until the issuance of this Order or until otherwise lifted by order of this tribunal.
The contested case hearing was conducted on October 9, 1998.
DISCUSSION
The issue in this case is whether Union County, which has operated a county landfill for
many years, should be allowed to continue using the vertical expansion capacity of its existing
landfill until a new landfill complying with Subtitle D can be permitted and constructed. The
existing landfill, like most landfills permitted and constructed before the present regulatory regime
became effective, consists of unlined trenches or pits into which waste is placed. In 1991, Union
County was placing waste in trenches constructed pursuant to its permit. Although the permit
authorized construction of new trenches on land adjacent to the operating trenches, the subsequent
enactment of Federal Regulations under RCRA Subtitle D prohibited lateral expansions of existing
unlined landfills. Union County was thus precluded from constructing new capacity, if doing so
required expanding the footprint (the area encompassing the trenches in which waste had already
been placed) of the landfill. Federal law did not address vertical expansions over existing
footprints. DHEC promulgated R.61-107.258 to regulate municipal solid waste landfills. This
regulation is closely based on 40 CFR Part 258, implementing RCRA Subtitle D, although the State
regulation incorporates some differences where states are given discretion to address issues not
regulated under Federal law or where the State may be more restrictive. Although R. 61-107.258
established deadlines by which all unlined facilities had to close, DHEC was authorized under S.C.
Code Ann. § 44-96-260(5) (Supp. 1997) to enter into agreements with permittees to allow continued
use of their landfills, via existing permitted capacity or vertical expansion, pending construction of
Subtitle D-compliant facilities or execution of alternative plans. DHEC's practice has been to grant
such requests under one of the following three conditions: (1) the permittee is in the process of
permitting and constructing a compliant facility; (2) the permittee can demonstrate financial
hardship; (3) or the permittee is engaging in activities which would promote regionalization of waste
management.
In October, 1997, DHEC notified Union County that upon expiration of the grace period
established by the Consent Agreement, it would have to close its vertical expansion and implement
its contingency plan providing alternative means of disposing of municipal solid waste. The County
began exploring development of a privately owned and operated landfill but did not produce any
evidence that other counties would participate in its development or operation. Union County has
started the process of having a Subtitle-D compliant facility permitted by DHEC, but that permit has
not yet been approved or issued.
In its July 2, 1998 letter to DHEC, Union County raised financial hardship as a ground
justifying extension of its current permit. DHEC denied the extension without requesting any
supporting financial data.
At the hearing on this matter, Union County introduced evidence that DHEC has entered into
consent agreements with other counties which allow them to use unlined disposal capacity past the
October 9, 1998 deadline set forth in R. 61-107.258. Union County argues that these counties
(Charleston, Berkeley, Williamsburg and Clarendon) were similarly situated with it and therefore
DHEC should be required to grant it similar relief to comply with the equal protection clauses of the
United States and South Carolina constitutions. Petitioner is correct in asserting that if it and the
other counties are similarly situated, equal protection requires that DHEC treat them in the same
manner. See Weaver v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1991). The
evidence, however, does not show enough similarity between DHEC's agreement with Union
County and DHEC's agreements with the other counties to invoke equal protection concerns. All
five counties met one of the conditions for which DHEC has elected to enter a consent agreement
for continued temporary use of their unlined landfills (financial hardship, pending construction of
a compliant facility or promotion of regional waste management). Further, there are two other
significant similarities between Union County and the other four counties executing consent
agreements with DHEC: (1) with the exception of Berkeley county, all the counties asserted and
proved financial hardship in meeting the October 9, 1998 deadline of the regulation; while DHEC
failed to request supporting documentation from Union County, Union County submitted convincing
proof of financial hardship at the contested case hearing; and (2) the allowance of continued use of
the unlined landfills of these counties beyond October 9, 1998 would not result in adverse
environmental impacts greater than that resulting from any other unlined landfill in the State.
Therefore, there would be no environmental effect from Union County's continued use of its unlined
landfill past the October 9, 1998 regulatory deadline that is distinguishable from that occasioned by
the other counties' use of their respective landfills past the deadline. See Weaver v. South Carolina
Coastal Council, 309 S.C. at 374 (1991).
The unfortunate timing, however, of Union County's landfill expansion precluded it from
having the necessary existing capacity as of the effective date of the new state and federal regulations
(October 9, 1993) to be allowed phaseout time beyond the October 9, 1998 deadline. To fulfill the
purposes of the Solid Waste Policy and Management Act, DHEC is charged with the responsibility
of phasing out the use of unlined landfills as soon as possible. In response, DHEC has exercised its
discretionary authority to limit the addition of new unlined capacity after October 9, 1993, while
allowing counties with sufficient existing permitted unlined capacity as of October 9, 1993 to
continue using that capacity until financially feasible alternative plans could be executed.
Immediately prior to October 9, 1993, Union County had several unused permitted areas
designated for waste disposal at its landfill. Because Union County had not yet excavated trenches
or placed any waste in those areas, prior to the effective date of the state regulations, however,
Union County was precluded from laterally expanding into those areas once the new requirements
took effect. Because its remaining permitted capacity was insufficient to handle waste until the
October 9, 1998 regulatory deadline, it was necessary for Union County to obtain a permit from
DHEC for the addition of vertical capacity. In contrast, Charleston, Clarendon, and Williamsburg
Counties had existing permitted capacity, as of October 9, 1993, that was sufficient to last past the
October 9, 1998 deadline.
Although Berkeley County requested a permit to vertically expand its unlined capacity, its
agreement with DHEC allowed it to finish the lift (a four to five foot layer of waste over the entire
landfill footprint) to simplify site closure.(1) Upon closure a landfill must have certain specified
contours and grade elevations, and the addition of this lift was intended to make closure easier and
eliminate the possible necessity of shifting waste to achieve the appropriate surface contours. No
evidence was presented to show that Union County requested or bargained for this type of relief or
that this type of relief would be appropriate for Union County.
At first blush, the equities of this case seem to favor Union County's position that, for all
practical purposes, it is similarly situated to the other counties. A closer examination reveals the
legitimacy of DHEC's concerns about timing and capacity, which this tribunal cannot ignore. To
effect a timely phaseout of unlined facilities in the State, DHEC cannot escape setting some cutoff
date beyond which use of unlined capacity added after the effective date of the new regulations will
not be allowed.
Finally, in its letter denying Union County's request to operate its landfill until January 1,
2000, DHEC offered to work with Union County to help reduce the cost of transferring waste to
other facilities by waiving some of the requirements for constructing a temporary transfer station.
DHEC indicated that the station would be allowed to operate pending the permitting review of Union
County's proposed new Subtitle D landfill. (See Respondent's Exhibit 12). Therefore, I find that
it is reasonable and appropriate for Union County to be allowed to continue to use its vertical
expansion capacity until a temporary transfer station has been permitted and constructed.
FINDINGS OF FACT
By a preponderance of the evidence, I find the following facts:
1. Notice of the date, time, place, and nature of the hearing was timely given to all
parties.
2. Union County owns and operates a municipal solid waste landfill at which solid waste
is placed in unlined disposal cells excavated below ground level; the waste is periodically covered
and an earthen cover is placed over the trench when it is filled to its designed and permitted final
elevation.
3. Union County entered into a Consent Agreement with DHEC which allowed it to
vertically expand its landfill capacity until October 9, 1998. In this Agreement, Union County
agreed to execute an intergovernmental agreement with Cherokee, Laurens and Newberry Counties
for the development of a regional landfill.
4. Union County was ultimately unsuccessful in obtaining the agreement of the other
counties to develop a regional landfill. A representative of DHEC attended each meeting between
officials of these counties.
5. The permitted final grade for Union County's vertical expansion is 60 feet above land
surface.
6. Union County's projected date for reaching capacity of the vertical expansion is
approximately one and one-half to two years from now.
7. Twenty-five (25) percent of Union County's solid waste is now being recycled.
8. Without Union County's recycling efforts in the past few years, their vertical
expansion would have already reached capacity by now.
9. If Union County is required to close its existing landfill and transfer its solid waste
outside the county before January 1, 2000, it will be forced to abandon most, if not all, of its
recycling efforts to redirect financial resources toward transfer and disposal costs for its solid waste.
10. A lined solid waste facility that complies with R. 61-107.258 takes approximately two
years to design and construct.
11. The daily volume of solid waste deposited in Union County's vertical expansion is
50 to 60 tons.
12. It will cost Union County approximately $50,000 to $70,000 per month to transfer
its solid waste to a landfill outside the county.
13. Since 1995, Union County has had significant extraordinary expenses which have
required it to cut jobs, abandon road work and double taxes.
14. Union County has a population of approximately 30,000.
15. Union County's population has a high percentage of poverty.
16. DHEC has allowed four South Carolina counties (Charleston, Clarendon,
Williamsburg, and Berkeley) to operate unlined landfills past October 9, 1998.
17. As of the effective date of R. 61-107.258, Charleston, Clarendon, and Williamsburg
Counties had existing permitted landfill capacity sufficient to last past October 9, 1998. In each
case, the facility had constructed disposal cells and begun placing waste in the permitted footprint.
18. In order to allow Berkeley County to close the currently operating cell in the unlined
facility and provide proper contours for the closure cap, DHEC allowed it to finish the 'lift' (a four
to five foot layer of waste over the entire footprint of the facility) currently in operation on October
9, 1998.
19. Upon DHEC's request, Charleston, Clarendon and Williamsburg Counties provided
documentation of financial hardship.
20. DHEC did not request documentation to substantiate Union County's claim of
financial hardship.
21. Union County will suffer financial hardship in complying with the October 9, 1998
deadline to close its existing landfill and transfer waste outside the county.
22. The continued operation of the Union County Landfill for the next two years would
not result in significant adverse environmental impacts greater than that from any other unlined
landfill in the State.
23. As of the effective date of R. 61-107.258, Union County did not have existing
permitted capacity to last beyond October 9, 1998.
24. DHEC has allowed neither Union County nor Berkeley County to continue use of
expanded vertical capacity until a date certain past October 9, 1998.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this case
pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1997).
2. The standard of proof in administrative proceedings is a preponderance of the
evidence. Anonymous v. State Board of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17 (1998).
3. The burden of proof is on Union County to demonstrate that it is entitled to a permit
or a permit extension. See 2 Am.Jur.2d Administrative Law § 360 (1994) (generally, the burden of
proof is on the party asserting the affirmative in an adjudicatory administrative proceeding); Converse Power Corp. v. South Carolina Dep't of Health and Envt'l Control, 98-ALJ-07-0032-CC
(June 15, 1998).
4. The purposes of the South Carolina Solid Waste Policy and Management Act, S.C.
Code Ann §§ 44-96-10 et. seq. (Supp. 1997), include, inter alia, the protection of the public health
and safety and the protection and preservation of South Carolina's environment. S.C. Code Ann.
§ 44-96-20(B)(1) (Supp. 1997). Additional purposes of the Act are to provide for the recycling of
solid waste and to encourage local governments to pursue a regional approach to solid waste
management. S.C. Code Ann. § 44-96-20(B)(1), (12) and (14).
5. Under S.C. Code Ann. § 44-96-270(2) (Supp. 1997), DHEC has the authority to
"issue, deny, revoke, or modify permits, registrations, or orders under such conditions as the
department may prescribe, pursuant to procedures consistent with the South Carolina Administrative
Procedures Act, for the operation of solid waste management facilities..."
6. Regulation 61-107.258, and in particular, Section 258.k, were duly promulgated and
approved by the legislature. As such, they have the force and effect of law. Glover by Cauthen v.
Suitt Const. Co., 318 S.C. 465, 458 S.E.2d 535 (1995).
7. DHEC is authorized to enter into binding agreements to implement the provisions of
the Solid Waste Policy and Management Act. S.C. Code Ann. § 44-96-260(5) (Supp. 1997).
8. A regulatory body possesses not only expressly conferred powers but also those
powers necessarily inferred or implied to enable it to effectively carry out its duties. City of Rock
Hill v. South Carolina Dep't of Health and Env'tl Control, 302 S.C. 161, 394 S.E.2d. 327 (1990).
9. An agency decision may be reversed as violative of the Equal Protection clauses of
the United States and South Carolina constitutions where an aggrieved party can show that the
agency failed to treat its application as it treated the applications of others similarly situated. Weaver
v. South Carolina Coastal Council, 309 S.C. 368, 423 S.E.2d 340 (1992).
10. Two significant similarities exist between Union County and the other four counties
executing consent agreements with DHEC: (1) with the exception of Berkeley county, all the
counties asserted and proved financial hardship in meeting the October 9, 1998 deadline of the
regulation; and (2) the allowance of continued use of the unlined landfills of these counties for the
next two years would not result in adverse environmental impacts greater than that resulting from
any other unlined landfill in the State.
11. As of October 9, 1993, Charleston, Clarendon, and Williamsburg Counties had
existing permitted capacity sufficient to last past October 9, 1998, while Union County did not have
such capacity.
12. To fulfill the purposes of the Solid Waste Policy and Management Act, DHEC is
charged with the responsibility of phasing out the use of unlined landfills as soon as possible.
13. DHEC's exercise of its discretion to limit the addition of new unlined capacity after
October 9, 1993 is rationally related to the purpose of phasing out the use of unlined landfills as soon
as possible.
14. The timing of Union County's landfill expansion precluded it from having the
necessary existing capacity as of the effective date of the new state and federal regulations (October
9, 1993) to be allowed phaseout time beyond the October 9, 1998 deadline.
15. The evidence does not show sufficient similarity between DHEC's agreement with
Union County and DHEC's agreements with the other counties to invoke equal protection concerns.
16. Each judge of the Administrative Law Judge Division has the power to issue those
remedial writs as are necessary to give effect to the Division's jurisdiction. S.C. Code Ann. § 1-23-630 (Supp. 1997).
17. Consistent with the purposes of the South Carolina Solid Waste Policy and
Management Act to protect the public health and safety and to protect and preserve the environment,
precautions must be taken in the closure of the Union County Landfill and the transition to use of
an alternative solid waste disposal system. It is therefore appropriate for Union County to be allowed
to continue to use its vertical expansion capacity until a temporary transfer station has been permitted
and constructed.
18. Any motions or issues raised in these proceedings, but not addressed in this Order
are deemed denied pursuant to ALJD Rule 29(C).
ORDER
IT IS THEREFORE ORDERED that Union County landfill cease vertical expansion,
and begin closure of its existing landfill within sixty (60) days of receiving a permit from DHEC
for a temporary transfer station to transport and dispose of its solid waste to a permitted Subtitle
D landfill. Union County must complete construction and initiate operation of such station
within the sixty-day period.
IT IS FURTHER ORDERED that the sixty-day period shall be extended as necessary
upon Union County's written notice to DHEC of weather delays.
AND IT IS SO ORDERED.
____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 30, 1998
Columbia, South Carolina
1. Berkeley County was not allowed to continue to use its vertical expansion until a date
certain past October 9, 1998. In fact, DHEC denied Berkeley County's subsequent request to
extend its usage of the vertical expansion until January 1, 2000. (Petitioner's Exhibit 11). |
